Establishing a right-of-way without a deeded easement is often a difficult task.
The owner of a landlocked parcel may have a right to access his or her property despite the absence of a deeded easement to a nearby public road. Easements (or rights-of-way) can be implied by course of action, established by reason of necessity, or otherwise remain where there once existed a public road. If a neighbor abruptly obstructs the use of an existing right-of-way, or strained relations preclude negotiating a right of access over the neighbor’s land, landowners should consider judicial action to confirm the right to access their landlocked parcel.
The clearest way to establish a right-of-way involves confirming the landlocked parcel once abutted a public road. When a public highway is discontinued, landowners with frontage on the former public road retain a continued right to use the right-of-way. Okemo Mountain, Inc. v. Town of Ludlow, 171 Vt. 201, 207 (2000). To establish this so-called “private right of access,” a landowner must simply show that (1) the land “abuts the road” and (2) the road was a “public road.” Id. Once established, the landowner is entitled to “free and convenient access to his property and to his improvements thereon.” Id. at 209. Vermont law affords a landowner similar rights if the former public road was the only means of access, but the statute confers more than a right to mere “reasonable and convenient access.” Under 19 V.S.A. § 717(c), a person whose “sole means of access” was by way of a discontinued town highway retains right-of-way “for any necessary access to the parcel of land.” Any necessary access is a broader concept than reasonable and convenient access.
In the absence of a discontinued road, a landowner may be able to establish an easement by necessity, which arises when the division and transfer of commonly owned land creates a parcel without access to a public road. Myers v. Lacasse, 2003 VT 86A, ¶ 16. In such a case, the purchaser of the landlocked parcel is entitled to a right-of-way “over the remaining lands of the common grantor or his successors in title.” Id. To obtain a way of necessity, “one must show that (1) there was a division of commonly owned land, and (2) the division resulted in creating a landlocked parcel.” Id. Mere inconvenience does not justify an easement by necessity; there must be no “reasonably practical access” to establish an easement by necessity. Berge v. State, 2006 VT 116, ¶ 10 (2006).
Because they are grounded in different policies, an easement by necessity differs in scope and duration from an easement over a discontinued road. First, an easement by necessity continues only so long as the necessity exists, so it evaporates if a public road is subsequently built or another means of access otherwise becomes available. Traders, Inc. v. Bartholomew, 142 Vt. 486, 493 (1983). Second, what constitutes “necessity” evolves over time. Access for pedestrian and vehicular traffic were historically the only rights regarded as necessary, but “increasing dependence . . . on electricity and telephone service, delivered through overland cables,” has led to the recognition of easements by necessity for those purposes as well. Berge, 2006 VT 116, ¶ 18. A landowner with an easement by necessity has the right to use the right-of-way to ensure “the reasonable enjoyment of his land for all lawful purposes.” Traders, Inc., 142 Vt. at 494.
Another more difficult means of establishing a right of access involves something akin to adverse possession, called an easement by prescription. To successfully establish an easement by prescription, there must be open, notorious, continuous and hostile use of a right-of-way for at least fifteen continuous years. Schonbek v. Chase, 2010 VT 91, ¶ 8. In other words, the user must continue to use the right-of-way without permission despite protests from the underlying landowner. Further, even if established, the scope of the rights accompanying a prescriptive easement are significantly limited. The nature, scope and location of a prescriptive easement are determined by use over the course of the prescriptive period, including intermittent or seasonal use. Id. at ¶ 11. Thus, if established, a landowner’s right to use a prescriptive easement must be consistent with, and may not exceed, the scope of her historical use.
Establishing a right-of-way without a deeded easement is often a difficult task. Needless to say, negotiating with abutting property owners often presents a more cost-effective approach to securing access to landlocked parcels. And negotiation affords the parties wider latitude in defining the scope of the easement. However, if negotiations stall, landowners should consider whether other alternative avenues exist for establishing an easement to their property.